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US SUPREME COURT PROPOSES NEW RULE ON CITATION OF UNPUBLISHED OPINIONS

If you read this essay, which I originally posted February 21, 2005, you’ll need to mentally attach an asterisk to it. The federal doctrine applying to citation of unpublished opinions may be about to change.

Yesterday, April 12, the Supreme Court of the United States adopted a new rule relating to citations to such opinions. Previously, the practice was up to the several circuits, and the Fourth has made it amply clear, through Local Rule 36(c), that it thought very little of the practice. Here, the rule has been that citation to unpublished opinions can be made only if counsel certifies that no published opinion would serve as well; the text of the local rule indicates fairly clearly that the court views such citations with relative disdain.

The rule adopted yesterday still permits the circuits to decide what weight they will assign to unpublished opinions, but it provides that the courts may not prohibit attorneys from citing them. In this sense, it will probably have little effect in the Fourth Circuit; four of its sister circuits will find their outright bans overturned by this action.

As with all Supreme Court rules, this one will not take effect if Congress acts to oppose it. The deadline for any such action in this case is December 1. Assuming that Congress does not block the new rule, it will take formal effect on January 1, 2007.

There is a very interesting analysis of this rule change, and some of the politics behind it, at this link.